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A Hostile Takeover

If you want to understand the systematic nature of the right's takeover of American public life, consider the Federalist Society. During the first Bush presidency and less than a decade after its founding in 1982, the society had already gained control of the process of vetting federal judicial appointees. By 2001 the Federalists were so dominant that George W. Bush simply eliminated the longstanding role in the evaluation of prospective judges by the resolutely centrist American Bar Association (ABA), whose ratings had long kept extremists and incompetents off the bench. Today the Federalists have more influence in judicial-selection than the ABA ever had.

The Federalist Society for Law and Public Policy Studies was begun by a small group of radically conservative University of Chicago law students -- Steven Calabresi, David McIntosh and Lee Liberman Otis -- who had been undergraduates together at Yale University. Harvard law student and future U.S. Sen. Spencer Abraham (R-Mich.), who started a Harvard University chapter, later joined them. Edwin Meese, who had been Ronald Reagan's attorney general, was an early sponsor.

Much of the society's leadership consists of formidable, active politicians (Utah's Republican Sen. Orrin Hatch is co-chair), important right-wing organizations (the American Enterprise Institute) and judicial voices (former Solicitor General Robert Bork and current Supreme Court Justice Antonin Scalia). Former Iran-Contra special prosecutor Lawrence Walsh wrote during the first Bush administration that he was especially troubled by one of White House Counsel C. Boyden Gray's assistant's open declaration that no one who was not a member of the Federalist Society had received a presidential judicial appointment from President George Bush Senior. In both Bush administrations, judicial appointments have been coordinated by the office of the counsel to the president, a staff composed nearly entirely of Federalists and their allies, people who consider Chief Justice William Rehnquist too moderate.

With seed money from the Institute for Educational Affairs (then headed by neoconservatives Irving Kristol and the late William E. Simon) and millions of dollars over the years from the Lynde and Harry Bradley, John M. Olin, Sarah Scaife, Charles Koch and Castle Rock foundations, the Federalist Society grew quickly. The Federalists targeted clerkships at the Supreme Court and appellate levels, recognizing the power of clerks to influence one another, justices, judges and the law itself. Calabresi went on to clerk for Bork and Scalia on the U.S. Court of Appeals for the District of Columbia Circuit, then worked at the White House and in the Department of Justice under Reagan and Bush Senior. McIntosh became a special assistant to then-Attorney General Meese and to President Reagan, and, later, a three-term congressman from Indiana who lost a race for governor. Otis became an assistant attorney general under Meese, then clerked for Scalia at the Supreme Court. And Abraham became a U.S. senator and is now the secretary of energy.

Power Points

The society today includes cabinet members (Attorney General John Ashcroft and Interior Secretary Gale Norton), Solicitor General Theodore Olson, White House Counsel Alberto Gonzalez (in charge of passing on all judicial nominations before they are submitted to Congress) and five of 11 lawyers on his staff. Donald Paul Hodel, secretary of the interior and the Energy Department in the Reagan administration (and later the president of the Christian Coalition), is a board member. Several sitting Supreme Court justices have spoken under the auspices of the society, and other leading judges on the federal bench advise local chapters.

The society membership today includes more than 40,000 lawyers, federal and state circuit and trial judges, law professors, policy experts and business leaders in 60 Lawyers Division chapters nationwide. It offers continuing legal education programs and promotes rightist views through publications and a number of sophisticated Web sites. There is a faculty division as well as a student division, which has 5,000 members nationwide. Edward Lazarus, a former law clerk for Supreme Court Justice Harry Blackmun, confirmed in 1990 that membership had already "bec[o]me a prerequisite for law students seeking clerkships with many Reagan judicial appointees, as well as for employment in the upper ranks of the Justice Department and the White House."

With an annual budget in excess of $3 million, the society holds annual national student symposia, and intermittently claims the academic high ground by staging "balanced" debates at law schools. Many leading liberal figures participate in those seminars, thereby adding to the society's stature.

Federalist Society publications, strategy sessions and panel discussions attack cases that would place individual rights above property rights, agencies that regulate business, and judges who seek to expand federal civil-rights laws and gender-equality protections. The society is very strategic and has an extensive friends and enemies list. But it does not litigate. Other right-wing legal groups -- the Institute for Justice, the Washington Legal Foundation, the Center for Individual Rights and the Pacific Legal Foundation -- do that on its behalf. A proliferation of religious-right litigation has also built a strategic litigation capacity. The Federalists work hard to keep disparate groups, often with conflicting agendas, under the same roof.

Federalists promote "school choice" and "charitable choice" (church involvement in state efforts to reform welfare), as well as creationist teachings and the distribution of religious materials in public schools. At the same time, they sponsor 15 practice groups in separate areas -- including religious liberty, national security, cyberspace, corporations law and environmental law -- to help shape Federalist policy and promote the right-wing revisionist agenda throughout the country.

A Full-Court Press

The right has also used attacks on sitting judges to intimidate the current judiciary. In a speech before the American Society of Newspaper Editors on April 19, 1996, then-Sen. Bob Dole (R-Kan.) made his opponent's judicial appointees a campaign issue, identifying several of Bill Clinton's choices as allegedly being soft on crime. New York Judge Harold Baer, Virginia Judge Leonie Brinkema, 3rd Circuit Judge H. Lee Sarokin and 11th Circuit Judge Rosemary Barkett were said to form a judicial "Hall of Shame" characterized by a willingness "to use technicalities to overturn death sentences for brutal murderers" and by a hostility "to law enforcement." Dole's assault was followed by similar accusations made by other conservative political figures, including three separate floor speeches by Orrin Hatch, chairman of the Senate Committee on the Judiciary.

The bullying tactics of Dole and Hatch were pure Federalist Society ones. Besides being insulting and demeaning, the two senators were dead wrong. It was ludicrous of Dole to blame judges for the increase in crime. But the stratagem had its intended effect. Sarokin, a Jimmy Carter appointee, announced his resignation on June 5, 1996, declaring that his political vilification had hampered his ability to render independent decisions. "I see my life's work and reputation being disparaged on an almost daily basis and I find myself unable to ignore it," he said. Sarokin argued pointedly, "To hold judges responsible for crime is like blaming doctors for disease. It is apparent that there are those who have decided to 'Willie Hortonize' the federal judiciary, and I am to be one of their prime targets."

In contrast to the right's systematic targeting of the judiciary, Clinton's defense of his nominees bordered on indifference. The shameful treatment received by his nominees in hearings -- the most notorious being the humiliating and false charges to which Missouri judge Ronnie White was subjected to by then-Sen. John Ashcroft (R-Mo.) in 1999 -- point up the inadequacies of Clinton's judicial machinery versus the disciplined, organized effort of the Reagan-Bush Senior team. The Republican Congress also played ideological hardball. Under Presidents Reagan and Bush, 85 additional federal judgeships were created; Clinton got just nine.

When one of Clinton's appointments was threatened, he characteristically withdrew that person's name. Peter Edelman, legislative assistant to Robert Kennedy and a Georgetown University law professor, was the first appointee put forward by Clinton following the Democrats' 1994 loss of Congress. Edelman and his wife, Children's Defense Fund founder Marian Wright Edelman, had a long-standing friendship with the Clintons. But the right went after Edelman's nomination to the high-profile U.S. Court of Appeals for the District of Columbia, and Clinton caved.

The withdrawal was "spun" by Clinton adviser Eleanor Acheson. Instead of defending Edelman against an outrageous attack, Acheson, speaking to The New York Times, stressed the administration's focus on the qualities of candidacy, "judicial temperament," "productivity," "energy," "integrity," "mental agility" and the nominee's understanding of the "court as an institution." Her remarks enraged Judge Steven Reinhardt, respected senior judge on the 9th U.S. Circuit Court of Appeals. Furious, he wrote a stinging three-page letter attacking the administration's nominations process. His rejoinder serves as a précis for all that went wrong during the Clinton years:

Who in the world is not for judges with "judicial temperament"? Who is not for "productivity"? Who is opposed to judges with "energy," "integrity" or mental "agility"? Is there anyone -- in Arkansas, Massachusetts or any other state -- who doesn't believe that judges should have an understanding of the "court as an institution"?

You must be aware by now that those most deeply committed to the judicial philosophy expounded by your predecessors laugh triumphantly at your protestations of philosophical objectivity. You must surely be aware how gleeful your predecessors are that this administration has caved so quickly at almost every sign of opposition, even when it possessed a majority in both Houses. Certainly, you know how astonished they are that you have made life so easy for them. ... Are you really seriously saying that you have no interest in which philosophy your appointees have as long as they are otherwise qualified? Do you choose at random among those individuals who are "productive," "agile" and have "energy"? Would Charles Cooper, [a prominent Federalist] or Clint Bolick [legal director of the conservative Institute for Justice] be as acceptable to you and the president as Peter Edelman? Is there no limit to the panic and spinelessness these days? I'm beginning to think so.

The Politics of Permanent Capture

After Bush v. Gore, the younger Bush dispensed with the ABA and made it clear that the Federalist Society was the employment center for judges. "There is no question that Federalist Society lawyers are in control," said Ralph Neas, president of the liberal People for the American Way, an organization that focuses on judicial selection. Control of the judiciary is a relentless White House priority. The administration had many of its circuit- and trial-court nominees ready to roll even before Bush took the oath of office and announced that he would not allow Clinton's still-pending appointees to get a hearing.

Other recent presidents of both parties with tenuous mandates appointed judicial moderates. But with Federalist Society help, Bush is acting as if he has a broad charter to turn the courts over to the ultra-right wing. Approximately 40 percent of Bush appointees identify themselves as Federalists. Those confirmed: Edith Brown Clement (5th Circuit), John Rogers (6th Circuit), Harris Hartz (10th Circuit) and Michael McConnell (10th Circuit). Pending nominations of those who have identified themselves as Federalist members: Miguel Estrada (D.C. Circuit), Priscilla Owen, who is on the board of advisers of the Houston and Austin chapters (5th Circuit), Jeffrey Sutton, vice chair of the Federalism and Separation of Powers practice group (6th Circuit), Henry Saad (6th Circuit), David McKeague (6th Circuit), Susan Neilson (6th Circuit), Carolyn Kuhl (9th Circuit), Jay Bybee (9th Circuit) and Timothy Tymkovich (10th Circuit). Because the circuit courts are the spawning ground for Supreme Court nominees, we will certainly see some of these judges nominated for the High Court, and several are to the right of any other potential nominees.

Federal judges enjoy lifetime appointments. Hugo Black, appointed to the Supreme Court in 1937, stayed 34 years; Rehnquist has been there for 31. Scalia, only 50 years old at the time of his appointment, has already served 17 years. Bush is very deliberately appointing judges still in their 30s and early 40s. That means not only that important cases will be lost now but that they may continue to be lost for the next 30 to 40 years. So we are not talking about losing Roe v. Wade for 10 to 15 years; we are talking about losing it for the life of your 10-year-old daughter. At present, seven of the 12 circuit courts are anti-abortion rights. Abortions have been effectively banned for many impoverished women who live in those jurisdictions. The conservatives intend to have all anti-abortion rights circuit courts, which will also be devoted to fulfilling the radical right's agenda on race, religion, class, money, morality and power.

On the average, a one-term president gets two Supreme Court nominations. The current situation is without historical precedent. Since 1937, one vacancy has occurred on average every two years, but this Supreme Court has not had a vacancy since 1994. Only once before, in 1823, have we been 11 years without a vacancy. Franklin Delano Roosevelt made nine appointments in less than six years, Abraham Lincoln five in less than three years, Harry Truman four in four years, Richard Nixon four in 30 months. Given the age and health of the present Court, George W. Bush will likely be appointing younger justices who will join Thomas and Scalia into the second quarter of this century. Bush may very well leave the changes in the law as his greatest legacy.

In 1993, Ruth Bader Ginsburg became the first Democratic appointee in a quarter-century, following 10 straight Republican appointees. Given past history, it is no surprise that seven of today's nine justices are Republican appointees. Over the past 50 years, Democratic presidents have appointed six Supreme Court justices, while Republican presidents have appointed 16. The most likely Supreme Court justices to step down within the next two years, while the Republicans control both the Congress and the presidency, are Rehnquist, 78 years of age, Sandra Day O'Connor, 72, and John Paul Stevens, 82. Most likely Scalia, a constant speaker at Federalist events and one of the society's most visible supporters, would become chief justice when Rehnquist steps down, while a conservative Hispanic such as Miguel Estrada, today a circuit-court nominee, or Alberto Gonzalez, the present White House counsel, would get nominated to fill the vacancy.

Liberals and Democrats need to recognize the systematic character of this assault and the immense stakes. Unless liberals mount a resistance with the same zeal and shrewdness that Bush and the Federalist Society are using to pack the courts, we will have a hard-right judiciary for decades to come. As the great Judge Learned Hand said: "Liberty lies in the hearts of men and women. When it dies, no constitution, no law, no court can save it."